Cardiff v. Bismarck Public School Dist.

• Decision Date: 16 February 1978
• Docket Number: No. 9388,9388
• Citation: 263 N.W.2d 105
• Parties: Gary CARDIFF, Russell Johnson, Alice Higgins, Cheryll McDowall, Jon Nelson, Plaintiffs and Appellees, v. BISMARCK PUBLIC SCHOOL DISTRICT, Defendant and Appellant. Civ.
• Court: North Dakota Supreme Court

Page 105

263 N.W.2d 105

Gary CARDIFF, Russell Johnson, Alice Higgins, Cheryll

McDowall, Jon Nelson, Plaintiffs and Appellees, v. BISMARCK PUBLIC SCHOOL DISTRICT, Defendant and Appellant.

Civ. No. 9388.

Supreme Court of North Dakota.

Feb. 16, 1978.

As Corrected March 2, 1978.

Wheeler, Wolf, Wefald & Peterson, Bismarck, for defendant and appellant; argued by Robert O. Welfald and Rick D. Johnson, Bismarck.

Fintan L. Dooley, Bismarck, and Stephen L. Pevar, Denver, Colo., for plaintiffs and appellees.

SAND, Justice.

The Bismarck Public School District appealed from an adverse summary judgment issued by the Burleigh County district court.

Gary Cardiff and other parents of school children attending elementary schools in the Bismarck Public School District brought an action in Burleigh County district court challenging the authority of the school district to charge rental fees for the use of necessary school textbooks.

The State of North Dakota initially was also a party defendant but was dismissed from the lawsuit by stipulation of all parties, which was approved by the court.

Both parties moved for summary judgment. The court issued its judgment decreeing that §§ 15-43-07, 15-43-08, 15-43-09, 15-43-10, and 15-43-12, North Dakota Century Code, were in conflict with § 148 of the North Dakota Constitution and were invalid. The judgment also enjoined the school district from charging textbook rental fees or any monetary sum for textbooks, other than reasonable charges for their abuse or destruction. The judgment allowed costs in the total amount of $40.00 in favor of the parents. Cardiff and other parents, after judgment sought attorney fees by motion, which was denied by the court on 3 August 1977. The Bismarck Public School District appealed from the judgment and Cardiff and other parents appealed from the order denying attorney fees.

The basic issue for our resolution is whether or not § 148 of the North Dakota Constitution provides for free textbooks and prohibits the Legislature from authorizing school districts to charge for textbooks. The parents contend the constitutional provision prohibits charging for textbooks, and the school district contends it merely prohibits charging tuition.

The secondary issue is whether or not the plaintiffs and appellees, Cardiff and other parents, are entitled to an allowance of attorney fees.

To resolve the first issue we must examine and construe the provisions of § 148 of the North Dakota Constitution, which provides as follows:

"The legislative assembly shall provide at their first session after the adoption of this constitution, for a uniform system of free public schools throughout the state, beginning with the primary and extending through all grades up to and including the normal and collegiate course."

In 1968 this section was amended, as follows:

"The legislative assembly shall provide for a uniform system of free public schools throughout the state, beginning with the primary and extending through all grades up to and including schools of higher education, except that the legislative assembly may authorize tuition, fees and service charges to assist in the financing of public schools of higher education."

In construing a written constitution we must make every effort to determine the intent of the people adopting it. State ex rel. Vogel v. Garaas, 261 N.W.2d 914 (N.D.1978); State ex rel. Sanstead v. Freed, 251 N.W.2d 898 (N.D.1977); State ex rel. Lein v. Sathre, 113 N.W.2d 679 (N.D.1962); State ex rel. Lyons v. Guy, 107 N.W.2d 211 (N.D.1961); 1 Cooley's Constitutional Limitations (8th ed.), Ch. 4, p. 124.

We must examine the whole instrument in order to determine the true intention of every part so as to give effect to each section and clause. If different portions seem to be in conflict, we must make a true effort to harmonize them if practicable.

In interpreting clauses in a constitution we must presume that words have been employed in their natural and ordinary meaning.

"As Marshall, Ch. J., says: 'The framers of the constitution, and the people who adopted it, "must be understood to have employed words in their natural sense, and to have intended what they have said." ' " 1 Cooley's Constitutional Limitations, p. 130.

Both parties contended that contemporaneous construction, as an aid in construction and interpretation of the constitution, recognized in this court in State ex rel. Sanstead v. Freed, 251 N.W.2d 898 (N.D.1977), and its predecessors, favored its point of view on the construction of § 148 of the North Dakota Constitution. We, however, note that in Sanstead an early Attorney General's opinion was available, in addition to long-standing practices, whereas here we have only early legislative Acts carried forward, but relatively little evidence on practices except for the current practice of the Bismarck School District.

The Legislature, in 1890, enacted Chapter 62, the title of which provides as follows:

"AN ACT to Provide for a Uniform System of Free Public Schools Throughout the State and to Prescribe Penalties for Violation of the Provisions Thereof."

This was a comprehensive Act which covered district (common) schools and special district schools. Under the provisions of sections 71 through 74 of chapter 62, the school board was required to provide the necessary supplies for the schools and all necessary and suitable furniture, maps, charts, and apparatus, including Webster's Unabridged Dictionary. However, no special mention was made of textbooks. Section 130 of chapter 62 directed certain topics be taught by the use of a textbook by pupils able to use a textbook (now found in § 15-38-07, NDCC).

Under the provisions of paragraph 1 of section 181, chapter 62, the school board of a special district was required:

"To establish a system of graded common schools, which shall be free to all children of legal school age residing within such special district, and shall be kept open not less than six nor more than ten months in any year."

Paragraph 6 of section 181, chapter 62, required the board:

"To purchase, sell, exchange, improve and repair school apparatus, text books for the use of the pupils, furniture and appendages, and to provide fuel for the schools." (Emphasis added.)

These provisions have been carried forward and are now found in § 15-29-08, NDCC, which specifies the general powers and duties of a school board. Section 140, chapter 62, required compulsory attendance at school for those children between eight and fourteen years of age. This concept is presently found in chapter 15-34, NDCC.

The 1890 Legislature also enacted chapter 64, establishing independent school districts. Section 12 of chapter 64, among other things, directed the board to levy taxes to raise funds

"To purchase, exchange, improve and repair school apparatus, books, furniture and appendages."

Section 19 of chapter 64 required the board

"To purchase, sell, exchange, improve and repair school apparatus, books for indigent pupils, furniture and appendages, and to provide fuel for schools." (Emphasis added.)

This section was carried forward in § 15-32-07, NDCC, until repealed in 1961.

Comparing sections 12 and 19 of chapter 64 with section 181 of chapter 62 results in confusion. The Legislature made no mention or provision for books in the common district schools, but in the special school districts it provided that the board would have the authority to purchase and sell books for the use of pupils, and in the independent school districts it gave the board authority to purchase and sell books for indigent pupils. It is difficult to determine what inferences may be drawn from these provisions.

In 1895 the North Dakota Legislature enacted chapter 109, the title of which provides as follows:

"AN ACT to Provide for Free Text Books and School Supplies for the Use of the Pupils in the Public Schools of North Dakota."

The body of the Act, however, conditions the free textbooks upon a favorable election by a majority of qualified electors of the district, which election is brought about by a presentation of a petition signed by a majority of the qualified electors. The title of the Act is misleading when compared to the body of the Act. Chapter 109, in part, has been carried forward and is found in §§ 15-43-01, 15-43-04 and 15-43-09, NDCC.

From this examination we are left with a firm conviction that the legislative acts referred to do not lend any significant comfort or aid to the resolution of the basic question under consideration, namely, what does the term "uniform system of free public schools" mean? Contemporaneous construction in this instance is not helpful to either party. The Journal entries of the constitutional convention are not very helpful in determining the meaning of the language, "free public schools."

The first item relating to public schools introduced at the North Dakota Constitutional Convention, as found in the Journal, was File No. 47, § 2, which provided, in part:

"It shall be the duty of the Legislature to establish and maintain a system of free public schools, adequate for education of all children in the state, between the ages of six and eighteen years, inclusive in the common branches of knowledge, and in virtue and christian morality."

File No. 47 was referred to the Committee of the Whole, where its provisions were restructured, given section numbers 150 through 156, and placed under Article VIII.

In the final revision, § 151 became § 148 as it was actually adopted.

The North Dakota convention also had available a constitution introduced by Mr. Williams, which was noted as File No. 106. Article VIII of the "Williams" constitution, as may be pertinent to our question, provided as follows:

"SECTION 1. The general assembly shall establish and maintain throughout the state a uniform system of free public schools."

"SECTION 3. In each school district one or more free public schools shall be maintained at least four...